Friday, 7 July 2017

All of life is changed: The impact of Brexit on UK nationals living in other EU Member States

Sarah McCloskey and Tamara
Hervey, Sheffield Law School

After a series of cataclysmic
political events, most people can empathise with the stress
and anxiety born out of the subsequent uncertainty. At this time, the
people who are enduring the
greatest burden are those who have enjoyed a right to free movement
exercised in good faith without concern that it might be taken away. Such is
Brexit: the source of frustration, a nuisance of the daily news to many, but
for EU
citizens in the UK and UK nationals living in other Member States, it holds
the potential to fundamentally change their very way of life. Without for a
moment disregarding the (moral and economic) significance of the former group,
we focus here on the latter.

Despite the hopes for "a
magnanimous gesture on the part of the Prime Minister,” the UK government
has maintained its stance that a unilateral offer to EU-27 nationals resident
in the UK on ‘Brexit Day’ would compromise its negotiating position. Thus, its
proposal is founded on the condition of reciprocity. Of course, we remain
uncertain as to the outcome of the negotiations. Nevertheless, we can consider
the extent to which the UK’s position is a “fair and serious”
offer (as the UK government has portrayed) by comparison with the EU’s
prior counterpart proposal.

According to the UK negotiating
position, upon the UK's exit from the EU, EU citizens in the UK will be
required to apply for a new residence status within a grace period of two
years. Despite promises of a “streamlined” procedure with incurred fees set at
a “reasonable level”, the proposal has faced criticism
for subjecting even those who have already obtained a certificate of permanent
residence to this new application process. Reciprocity on these terms would
dictate that UK nationals in the EU-27 must therefore expect analogous
treatment under their post-Brexit status of “third country nationals” (TCNs).
They would need to apply for a new residence status under the immigration law
of the EU Member State in which they reside. And again, if reciprocity applies,
while those who arrive before the yet-to-be-specified date will be granted a
temporary status that allows them the opportunity to accrue the vital 5 years
of residence, those who arrive at any time thereafter will have no such
protection or special treatment. Instead, they would be subject to ordinary
immigration law.

Further, any disputes would have
to be settled through national courts in the EU-27 country, without any
recourse to a supranational authority (such as the CJEU) for a definitive
settlement. It would be significantly more difficult to enforce residence and
other rights than it is at present.

Under the UK negotiating position,
those EU nationals who are successful will be granted what is referred to as
"settled status" in UK law pursuant to the Immigration Act 1971. This
is subject to certain criteria, including that the applicant must have been
resident in the UK before an (as yet un-) specified date (that will fall
between 29 March 2017, when the Article 50 letter was sent, and Brexit Day) and
have completed a period of 5 years’ continuous residence. It is worth noting
here that the UK government has not outlined its definition of “continuous
residence” and, given the Prime
Minister’s hostility towards the CJEU, it cannot be presumed that it
mirrors that accepted in EU law.

Again, if applied reciprocally,
UK nationals currently resident in the EU-27 (as EU-27 nationals currently
resident in the UK) would be potentially precluded from relying on the benefits
of free movement to visit family or for work-related events, for example, in case
such visits interrupt their period of continuous residence for longer than
permitted under the relevant law. Further, as Strumia notes, this
means that the UK’s present protection of free movement is meaningless for EU
citizens living in the UK, as any such exercise could be to the detriment of
their post-Brexit application. Like so
many other issues, the devil is in the detail and thus, it remains to be seen
just how “smooth
and simple” acquiring these new rights will be.

Turning to the more specific
issues of pensions, child benefits, education, and healthcare, the UK’s
negotiating position offers a little more information. On pensions, the UK’s
position is explicit that ‘the
UK will continue to export and uprate the UK State Pension within the EU’.
Given that 21% of UK nationals in EU-27
countries are over the age of 65, this is a significant commitment. Likewise, the current
position on child benefit continues: individuals resident before Brexit Day
will be able to export any child benefit to which they are entitled in their
country of residence, which is of great importance for divorced and separated
families. On education, the right of UK students to remain in the respective EU-27
country applies up until course completion (and not beyond) and those with
residence rights have the same access to tuition fees and any maintenance
grants as nationals of the host country.

Healthcare, however, poses more complexities. The UK government
has proposed a new arrangement ‘akin to the EHIC scheme’ (i.e. the European
Health Insurance Card, which currently entitles those covered by their home
health care system like the NHS to medical treatment in another EU country). There are non-EU states incorporated within
the EHIC scheme, so in theory the UK could join post-Brexit. But in practice,
free movement rights will have to be included. Otherwise, the technical and
administrative logistics, outside of the current arrangements for coordination
of social security, may prove insuperable. The EU coordination of social
security is a rules-based system: it is not a matter of politically negotiated
bespoke arrangements. A reciprocal deal (to be part of the rules-based system)
may be feasible. Access to health care outside such a system (without free
movement, without the possibility of CJEU oversight) is unlikely to be so. If that is
so, in principle a reciprocal deal would leave UK nationals resident in the EU
to fall back on national law to determine their health care
entitlements.

The UK’s negotiating position does not explicitly address
a host of other practicalities for UK nationals resident in the EU-27 (and vice
versa): equal access to housing; equal tax benefits; entitlement to move to and
reside in other EU Member States; and equal entitlements to union membership.
This is far from offering the claimed reassurance in the face of uncertainty.

In the absence of such details, the only guiding light is:
"After we leave the EU, the UK will no longer be subject to EU law. Free
movement rights will come to an end and therefore cannot be carried forward, as
an EU legal right, into the post-exit UK legal regime.”

If this is the default, and reciprocity is the basis for
future entitlements, the effects for UK nationals in the EU-27 would be to face
the same prospect of rights reduction as their EU citizen counterparts
in the UK.

Applicable EU law

However, this analysis on the basis of reciprocity ignores
the fact that the EU itself alreadyhasrulesconcerning the treatment of non-EU
TCNs resident in its Member States. The UK’s rejection of an ‘acquired
rights’ approach or, indeed, a bespoke proposal of any kind marks an
intention to simply align the status of EU nationals with UK immigration law,
with all the procedural and substantive implications that entails. But that
approach is not available to the EU-25 (Ireland and Denmark have opted
out of this law), who are bound by EU law on non-EU migrants, in particular
by the EU’s
Long-Term Residence (LTR) Directive. The LTR Directive brings the position
of UK nationals resident in the EU-25 within EU law as it provides legal
protection to some TCNs. This is a Directive that can be - and has been -
enforced before national courts, and is subject to the jurisdiction of the CJEU.
(There is also
some EU legislation on the position of non-EU citizens who don’t yet qualify
for LTR status).

Articles 7 and 8 of the LTR
Directive govern the scheme by which long-term resident status is acquired and
the residence permit granted. The LTR Directive holds the process to a certain
standard, imposes common criteria, requires the grant of LTR status where
conditions are satisfied (Article 7 (3), Iida
para 39), and guarantees certain rights where applications are successful.
Article 7(2), for example, requires applications to be processed within 6
months, and Article 10 states that reasons must be given for decisions.

Subject to certain conditions
(outlined below), the Directive confers equal treatment of TCNs to nationals in
the host country in numerous areas. These include: access to employment;
self-employment; recognition of qualifications; tax benefits; and pensions. The
UK’s negotiating position, inasmuch as it fails to offer these matters on a
reciprocal basis, appears to assume that this aspect of EU law does not exist.

The entitlements under the LTR
Directive (and possibly parallel
national laws on long-term residence) are extensive. Assuming that it would
be the applicable law if the UK’s proposals were to succeed, or indeed if the
UK were to leave the EU without successfully negotiating a withdrawal
agreement, this raises a question. The position of UK nationals in the EU-27
would obviously be better if the EU proposal prevailed (particularly for those
who do not have long-term residence yet). But how much worse off would UK
nationals in the EU-25 be under the UK proposals as compared to the EU’s offer?
(The position of UK nationals in Ireland will presumably be a special case
because of the common
travel area; UK nationals in Denmark would have to rely on Danish law.)

The EU proposal seeks to maintain the current status of EU
citizens in the UK and UK nationals in the EU-27, but without the framework of
EU citizenship which is conditional on membership of the EU. By comparison, the
LTR Directive has been described as creating a “subsidiary form of EU citizenship”.

The LTR Directive offers TCNs a wide range of rights equal
to that of nationals in their host country. It removes Member States’ direct
control by outlining that where conditions are met and where there is no
Article 6 exception (for public policy or public security), long-term resident
status must be granted (Article 7(3)). Ordinary immigration law is not subject
to those kinds of external oversights or constraints. However, LTR status
remains far from parity with EU citizenship status and, in turn, the EU’s
proposal. The material rights are less, the scope is more restrictive, and the
acquisition process more arduous.

Equal treatment in respect of social assistance and social
protection can be confined to core benefits (Article 11(4)), as defined in the
ECJ ruling in Kamberaj. Retention of restrictions to
access to employment or self-employed activities where these activities are
lawfully reserved to nationals, EU or EEA citizens is also permitted (Article
11(3)(a)). Further, acquiring LTR status does not confer the free movement rights
within the EU that its citizens are accustomed to; Article 14 outlines the
conditions which must be met to acquire the right to reside in a second Member
State for a period exceeding three months. The right to family reunification
represents another stark contrast: for TCNs, the highly restrictive Directive
2003/86/EC applies, while the EU proposal guarantees that the Withdrawal
Agreement would apply to family members, ‘regardless of their nationality, as
covered by Directive 2004/38’. This covers both current and future family
members.

Turning to scope, the EU proposal is unequivocal: it
captures all 'UK nationals who reside or have resided in EU27 at the date of
entry into force of the Withdrawal Agreement', UK nationals who work or have
done so in EU27 at that date whilst residing in the UK or another EU27, UK
nationals covered by Regulation 883/2004, and (in all cases) their family
members. Conversely, Article 3(2) of the LTR Directive outlines numerous
exclusions, including TCNs resident due to pursuit of studies or vocational
training, seasonal workers, and cross-border service providers.

Further, in exchange for this more limited status, there
are a greater number of conditions to satisfy. Beyond its mutual basis with the
EU proposal’s requisite 5 years continuous legal residence, the LTR Directive
also sets out that TCNs need to: provide evidence that they possess sufficient
stable and regular resource to maintain themselves and their family members
without recourse to the host Member State's social assistance system; have
adequate sickness insurance; and, in some cases, demonstrate compliance with
integration conditions imposed by national law. Necessarily, implementation of
the UK proposal would therefore subject UK nationals in the EU-27 to a much
more demanding application process with likely lower success rates than the
more black-and-white EU proposal.

Undoubtedly then, the EU proposal is far more favourable
to that offered by the UK. This is not unexpected; while the EU recognises the
valuable contribution made by TCNs to the Member States in which they reside,
inevitably a proposition vested in the interests of the 3.15 million EU citizens in the UK will comprise a better
deal than the residual LTR Directive position. And, for negotiating purposes,
offering identical conditions for UK nationals in the EU-27 was necessary.

Nonetheless, were the UK proposal to prevail, its
nationals are still afforded better protection than their EU citizen
counterparts in the UK. The LTR Directive and Article 7(3) in particular
represent a safety net to which the EU-25 are held to account. There is no such
equivalent for EU citizens in the UK who, post-Brexit, would be entirely at the
mercy of ordinary immigration law were the UK’s position adopted.

Non-reciprocity

There is an undeniable gap between the EU negotiating
position and the LTR Directive. However, it is to some extent quantifiable. In
contrast, the extent of the chasm between the current position of EU nationals
in the UK and the UK’s proposal for their post-Brexit future is not yet known.
Moreover, the UK’s silence on numerous existing rights does not bode well. While
the comparable certainty of the LTR Directive is enough to be relatively
reassuring to UK nationals, those who do not yet qualify for the status will be
subject only to national immigration law and thus face the same level of
uncertainty as EU citizens in the UK.

It might seem surprising that the UK’s response to the EU
proposal is so weak. But perhaps this is somewhat accounted for by the
difference in numbers: in comparison to the 3.15 million EU citizens in the UK,
there are an estimated 900,000 UK nationals in the EU-27. Most of them do not vote in UK
general elections. Perhaps they are the ‘sacrificial lambs’ of these negotiations. But this
fails to account for the 60% of UK nationals who want to keep their EU citizenship. (Notably, this number increases
by 20% for the up and coming political force that are the 18-24 year olds.) If
these polls are to be believed, the UK
government has a greater investment in a good deal than their proposals implied
they thought to be the case. Lest it further alienate the electorate, the UK
government should reconsider the EU’s position, taking into account applicable
EU law, and provide an injection of reality into its negotiating stance.

Healthcare. The EHIC is important for Brits in UK for short term travel to EU. However for British residents in EU27 the most important healthcare issue is the S1 reciprocal payment. Here in Spain where access to healthcare is by contributions for all (normally of course by employed through their social security). For British state pensioners the S1 payment from DWP is critical. Without it private insurance is prohibitive as is paying into a special state fund at €157 a month and full cost of prescriptions. Without S1 or private then residence right is lost both under EU and national law. UK failed to reassure Brit pensioners in Spain (and others)and has left them as sacrificial lambs.

The Uk is so multicultural. Was in London recently and am Australian living in France. England is shooting itself in the foot if it follows Brexit. The NHS is I think 60% EU doctors etc like in France. Cambridge science labs EU and the car industry! What are you guys going to do? Its such an intricate thing to split 43 years of law contracts etc. Will never work and I personallly think as the banks and industry leave the UK will have to rethink things again and have a referendum. PS Where will you guys find the money to pay back the EU the Queen, as the coffers dont have it Im sure!

To clarify a commonly held misconception regarding the health insurance of British people who are long term residents of E27 counties:

An EHIC is only for unplanned medical treatment during temporary stays in another EU country. It provides reimbursement of costs incurred, on the same terms as nationals of the country you are in, according to the rules and rates of the country where the treatment was received.

UK nationals who are long term residents in the EU-27 cannot use their EHIC in the country where they live. It is only for short-term travel and unplanned treatment within other countries of the EU.

Currently, in order to live legally in an EU-27 country as a UK national, you must have permanent health cover according to the system in that country. UK pensioners, cross-border workers, posted workers and civil servants are entitled to an S1 form from the UK. They must register the S1 with the authorities in their country of residence to obtain permanent health care in their country of residence, paid for automatically by the British government. Without an S1 comprehensive private health insurance is required.

If the S1 system disappears after Brexit and the UK government does not agree on a replacement, and does not continue to honour these payments, this will mean UK citizens living in the EU-27 will lose their current rights in terms of paid health care in their country of residence. They will not be able to use EHIC cards to cover health insurance costs in their country of residence. This will be a very important loss of rights for these UK citizens in the EU-27.

It is not at all clear that UK Government appreciates this situation, given their silence on this matter.

"Who can benefit from the [EHIR]card?To be eligible for a card, you must be insured by or covered by a state social security system in any Member State of the European Union, Iceland, Liechtenstein, Norway or Switzerland. Each separate member of a family travelling should have their own card.People from non-EU countries who are legally residing in the EU and are covered by a state social security scheme are also eligible for a card. However, nationals from non-EU countries cannot use their EHIC for medical treatment in Denmark, Iceland, Liechtenstein, Norway and Switzerland."

Source http://ec.europa.eu/social/main.jsp?catId=563

And I've never had an S1 form to access health insurance in Belgium. I live here and pay social security contributions in Belgium thus I have health care. I have never seen a Form S1.

"And I've never had an S1 form to access health insurance in Belgium. I live here and pay social security contributions in Belgium thus I have health care. I have never seen a Form S1."

You have never seen an S1 Form ?

Well unless you are one of these groups: UK pensioners, cross-border workers, posted workers and civil servants, then you are not entitled to an S1 form.

See my post above, to help clarify things for you.

You can however benefit from an EHIC card, if you haven't already got one, from the Belgium administrators, to make sure you are covered during short-term travel and for unplanned treatment within other countries of the EU.

To clarify further... what I am saying is that, if the S1 form ceases to be valid after Brexit, those UK citizens living in EU27 countries WHO RELY ON A UK S1 FORM, eg UK pensioners, are in danger of losing their rights to health care paid for by the UK, in their country of residence. They use the S1 to register in their country's health system. For them the EHIC also comes by virtue of having an S1. Workers in Belgium, France etc. are contributing to the local security system and of course have health cover like you.

The EU will not offer local voting rights to UK citizens (it arises from EU citizenship). Which tells me that Barnier et al cannot offer anything to the British that goes beyond Treaties and Directives. Which means clear limitations on a Brit's rights in the EU. (At the same time, the EU asks for un-watered EU rights for EU citizens in the UK.) So I'm a bit puzzled that Barnier has offered "lifetime" rights. Doesn't that go beyond the Directives? Is he mandated to offer anything beyond the rights TCNs enjoy today? Mari